EXECUTIVE MANSION, _May 7, 1888_.
_To the House of Representatives_:
I return without approval House bill No. 1406, entitled "An act to
provide for the sale of certain New York Indian lands in Kansas."
Prior to the year 1838 a number of bands and tribes of New York
Indians had obtained 500,000 acres of land in the State of Wisconsin,
upon which they proposed to reside. In the year above named a treaty was
entered into between the United States and these Indians whereby they
relinquished to the Government these Wisconsin lands. In consideration
thereof, and, as the treaty declares, "in order to manifest the deep
interest of the United States in the future peace and prosperity of
the New York Indians," it was agreed there should be set apart as a
permanent home for all the New York Indians then residing in the State
of New York, or in Wisconsin, or elsewhere in the United States, who
had no permanent home, a tract of land amounting to 1,824,000 acres,
directly west of the State of Missouri, and now included in the State
of Kansas--being 320 acres for each Indian, as their number was then
computed--"to have and to hold the same in fee simple to the said tribes
or nations of Indians by patent from the President of the United
States."
Full power and authority was also given to said Indians "to divide said
lands among the different tribes, nations, or bands in severalty," with
the right to sell and convey to and from each other under such rules and
regulations as should be adopted by said Indians in their respective
tribes or in general council.
The treaty further provided that such of the tribes of these Indians as
did not accept said treaty and agree to remove to the country set apart
for their new homes within five years or such other time as the
President might from time to time appoint should forfeit all interest
in the land so set apart to the United States; and the Government
guaranteed to protect and defend them in the peaceable possession and
enjoyment of their new homes.
I have no positive information that any considerable number of these
Indians removed to the lands provided for them within the five years
limited by the treaty. Their omission to do so may have been owing to
the failure of the Government to appropriate the money to pay the
expense of such removal, as it agreed to do in the treaty.
It is, however, stated in a letter of the Secretary of the Interior
dated April 6, 1878, contained in the report of the Senate committee to
whom the bill under consideration was referred, that in the year 1842
some of these Indians settled upon the lands described in the treaty;
and it is further alleged in said report that in 1846 about two hundred
more of them were removed to said lands.
The letter of the Secretary of the Interior above referred to contains
the following statement concerning these Indian occupants:
From death and the hostility of the settlers, who were drawn in that
direction by the fertility of the soil and other advantages, all of the
Indians gradually relinquished their selections, until of the Indians
who had removed thither from the State of New York only thirty-two
remained in 1860.
And the following further statement is made:
The files of the Indian Office show abundant proof that they did not
voluntarily relinquish their occupation.
The proof thus referred to is indeed abundant, and is found in official
reports and affidavits made as late as the year 1859. By these it
appears that during that year, in repeated instances, Indian men and
widows of deceased Indians were driven from their homes by the threats
of armed men; that in one case at least the habitation of an Indian
woman was burned, and that the kind of outrages were resorted to which
too often follow the cupidity of whites and the possession of fertile
lands by defenseless and unprotected Indians.
An agent, in an official letter dated August 9, 1859, after detailing
the cruel treatment of these occupants of the lands which the Government
had given them, writes:
Since these Indians have been placed under my charge, which was, I
think, in 1855, I have endeavored to protect them; but complaint after
complaint has reached me, and I have reported their situation again and
again; and I hope that it will not be long when the Indians who are
entitled to land under the decision of the Indian Office shall have it
set apart to them.
The same agent, under date of January 18, 1860, referring to these
Indians, declares:
These Indians have been driven off their land and claims upon the New
York tract by the whites, and they are now very much scattered and many
of them are very destitute.
It was found in 1860 that of all the Indians who had prior to that
date selected and occupied part of these lands but thirty-two remained,
and it seems to have been deemed but justice to them to confirm their
selections by some kind of governmental grant or declaration, though
it does not appear that any of them had been able to maintain actual
possession of all their selected lands against white intrusion. Thus
certain special commissioners appointed to examine this subject, under
date of May 29, 1860, make the following statement:
In this connection it may be proper to remark that many of the tracts
so selected were claimed by lawless men who had compelled the Indians
to abandon them under threats of violence; but we are confident that no
serious injury will be done to anyone, as the improvements are of but
little value.
On the 14th day of September, 1860, certificates were issued to the
thirty-two Indians who had made selections of lands and who still
survived, with a view of securing to them such selections and at the
same time granting to them the number of acres which it was provided
they should have by the treaty of 1838. These certificates were made
by the Commissioner of Indian Affairs, and declared that in conformity
with the provisions of the treaty of 1838 there had been assigned and
allotted to the person named therein 320 acres of the land designated in
said treaty, which land was particularly described in said certificates,
which concluded as follows:
And the selection of said tract for the exclusive use and benefit of
said reserve, having been approved by the Secretary of the Interior, is
not subject to be alienated in fee, leased, or otherwise disposed of
except to the United States.
In a letter dated September 13, 1860, from the Indian Commissioner to
the agent in the neighborhood of these lands reference is made to the
conduct of white intruders upon the same, and the following instructions
were given to said agent:
In view of these representations and the fact that these white persons
who are in possession of the land are intruders, I have to direct
that you will visit the New York Reserve in Kansas at your earliest
convenience, accompanied by those Indians living among the Osages to
whom said lands have been allotted, with a view to place them in
possession of the lands to which they are entitled; and if you should
meet with any forcible resistance from white settlers you will report
their names to this office, in order that appropriate action may be
taken in the premises, and you will inform them that if they do not
immediately abandon said lands they will be removed by force. When you
shall have given the thirty-two Indians peaceable possession of their
lands, or attempted to do so and have been prevented by forcible
resistance, you will make a report of your action to this Bureau.
The records of the Indian Bureau do not disclose that any report was
ever made by the agent to whom these instructions were given.
In 1861 and 1862 mention was made by the agents of the destitute
condition of these Indians and of their being deprived of their lands,
and in these years petitions were presented in their behalf asking that
justice be done them on account of the failure of the Government to
provide them with homes.
In the meantime, and in December, 1860, the remainder of the reserve not
allotted to the thirty-two survivors was thrown open to settlement by
Executive proclamation. Of course this was followed by increased
conflict between the settlers and the Indians. It is presumed that it
became dangerous for those to whom lands had been allotted to attempt to
gain possession of them. On the 4th day of December, 1865, Agent Snow
returned twenty-seven of the certificates of allotment which had not
been delivered, and wrote as follows to the Indian Bureau:
A few of these Indians were at one time put in possession of their
lands. They were driven off by the whites; one Indian was killed, others
wounded, and their houses burned. White men at this time have possession
of these lands, and have valuable improvements on them. The Indians are
deterred even asking for possession. I would earnestly ask, as agent for
these wronged and destitute people, that some measure be adopted by the
Government to give these Indians their rights.
An official report made to the Secretary of the Interior dated February
16, 1871, gives the history of these lands, and concludes as follows:
These lands are now all or nearly all occupied by white persons who have
driven the Indians from their homes--in some instances with violence.
There is great necessity that some relief should be afforded to them by
legislation of Congress, authorizing the issue of patents to the
allottees or giving them power to sell and convey.
In this way they will be enabled to realize something from the land, and
the occupants can secure titles for their homes.
Apparently in the line of this recommendation, and in an attempt to
remedy the condition of affairs then existing, an act was passed on the
19th day of February, 1873, permitting heads of families and single
persons over 21 years of age who had made settlements and improvements
upon and were _bona fide_ claimants and occupants of the lands for
which the thirty-two certificates of allotments were issued to enter and
purchase at the proper land office such lands so occupied by them, not
exceeding 160 acres, upon paying therefor the appraised value of said
tracts respectively, to be ascertained by three disinterested and
competent appraisers, to be appointed by the Secretary of the Interior,
who should report the value of such lands, exclusive of improvements,
but that no sale should be made under said act for less than $3.75 per
acre.
It was further provided that the entries allowed should be made within
twelve months after the promulgation by the Secretary of the Interior of
regulations to carry said act into effect, and that the money arising
upon such sales should be paid into the Treasury of the United States
in trust for and to be paid to the Indians respectively to whom such
certificates of allotment had been issued, or to their heirs, upon
satisfactory proof of their identity, at any time within five years from
the passage of the act, and that in default of such proof the money
should become a part of the public moneys of the United States.
It was also further provided that any Indian to whom any certificate of
allotment had been issued, and who was then occupying the land allotted
thereby, should be entitled to receive a patent therefor.
Pursuant to this statute these lands were appraised. The lowest value
per acre fixed by the appraisers was $3.75, and the highest was $10,
making the average for the whole $4.90 per acre.
It is reported that only eight pieces, containing 879.76 acres of land
taken from six of these Indian allotments, were sold under this statute
to the settlers thereon, producing the sum of $4,058.06, and that the
price paid in no case was less than $4.50 per acre.
It is proposed by the bill under consideration to sell the remainder of
this allotted land to those who failed to avail themselves of the law of
1873 for the sum of $2.50 per acre.
Whatever may be said of the effect of the action of the Indian Bureau in
issuing certificates of allotment to individual Indians as it relates to
the title of the lands described therein, it was the only way that the
Government could perform its treaty obligation to furnish homes for any
number of Indians less than a tribe or band; and if these allotments did
not vest a title in these individual Indians they secured to them such
rights to the lands as the Government was bound to protect and which it
could not refuse to confirm if it became necessary by the issuance of
patents therefor.
These rights are fully recognized by the statute of 1873, as well as by
the bill under consideration.
The right and power of the Government to divest these allottees of their
interests under their certificates is so questionable that perhaps it
could only be done under the plan proposed, through an estoppel arising
from the acceptance of the price for which their allotted lands were
sold.
But whatever the effect of a compliance with the provisions of this bill
would be upon the title of the settlers to these lands, I can see no
fairness or justice in permitting them to enter and purchase such lands
at a sum much less than their appraised value in 1873 and for hardly
one-half the price paid by their neighbors under the law passed in that
year.
The occupancy upon these lands of the settlers seeking relief, and of
their grantors, is based upon wrong, violence, and oppression. A
continuation of the wrongful exclusion of these Indians from their lands
should not inure to the benefit of the wrongdoers. The opportunities
afforded by the law of 1873 were neglected, perhaps, in the hope and
belief that death would remove the Indians who by their appeals for
justice annoyed those who had driven them from their homes, and perhaps
in the expectation that the heedlessness of the Government concerning
its obligations to the Indians would supply easier terms. The idea is
too prevalent that, as against those who by emigration and settlement
upon our frontier extend our civilization and prosperity, the rights of
the Indians are of but little consequence. But it must be absolutely
true that no development is genuine or valuable based upon the violence
and cruelty of individuals or the faithlessness of a government.
While it might not result in exact justice or precisely rectify the
wrong committed, it may well be that in existing circumstances the
interests of the allottees or their heirs demand an adjustment of the
kind now proposed. But their lands certainly are worth much more than
they were in 1873, and the settlers, if they are not subjected to a
reappraisement, should at least pay the price at which the lands were
appraised in that year.
If the holders of the interests of the allottees have such a title as
will give them a standing in the courts of Kansas, I do not think they
need fear defeat by being charged with improvements under the occupying
claimants' act, for it has been decided in a case to be found in the
twentieth volume of Kansas Reports, at page 374, that--
Neither the title nor possession of the Indian owner, secured by
treaty with the United States Government, can be disturbed by State
legislation; and the occupying claimants' act has no application in
this case.
And yet the delay, uncertainty, and expense of legal contests should be
considered.
I suggest that any bill which is passed to adjust the rights of these
Indians by such a general plan as is embodied in the bill herewith
returned should provide for the payment by the settlers within a
reasonable time of an appraised value, and that in case the same is not
paid by the respective occupants that the lands be sold at public
auction for a price not less than the appraisement.